The right to speedy trial is an important right. When you are accused of a crime– and you are innocent– you want your innocence declared swiftly. When you are incarcerated, restricted by release conditions, or you’ve had to post bail pending the outcome of a criminal charge, you want the charge resolved as soon as possible. Unfortunately for many, the wheels of justice are slow. Fortunately, there are state and federal laws which require at least some expediency to criminal cases.
Right to Speedy Trial under Oregon Statutes
Oregon’s speedy trial statutes underwent a significant overhaul in 2013 with the repeal of ORS 135.747. It was replaced by the provisions below.
ORS 135.746 (Criminal proceedings; time limits for commencement of trial) reads as follows:
(1) Except as provided in ORS 135.748:
(a) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument.
(b) A trial in which the most serious charge alleged in the charging instrument is designated by statute as a felony must commence within three years from the date of the filing of the charging instrument.
(c) A trial in which two or more charges have been consolidated pursuant to ORS 132.560 must commence within the applicable time period required in this subsection for the most serious offense alleged in the charging instrument.
(d) A joint trial in which two or more defendants are charged in the same charging instrument must commence within the applicable time period required in this subsection for the most serious offense alleged in the charging instrument.
(2) The time limits required in subsection (1) of this section cease to apply to a defendant who fails to appear at the date and time scheduled for trial.
(3) If a trial date is scheduled by the court for a defendant represented by counsel and neither the defendant nor the defendant’s counsel objects within seven days of the notice of the trial date to the fact that the scheduled trial date is not within the time limit required in subsection (1) of this section, the time limit is extended until the scheduled trial date, and may be further extended as provided in ORS 135.748.
ORS 135.748 (Time for commencement of trial; exclusion of time) reads as follows:
(1) All applicable periods of elapsed time as follows are excluded from the time limits described in ORS 135.746:
(a) A period of time during which the defendant is:
(A) Under observation or examination for fitness to proceed under ORS 161.365, beginning when the issue of the defendant’s possible lack of fitness to proceed has been raised by the defendant or the defendant’s counsel, until a final determination regarding the defendant’s fitness to proceed has been made by the court;
(B) Determined to be unfit to proceed by the court pursuant to ORS 161.360 and 161.370;
(C) Under observation or examination after notice of the issue of the defendant’s mental disease or defect, partial responsibility, diminished capacity, insanity or other mental defense is raised by the defendant or the defendant’s counsel, until the trial date; or
(D) Unable to appear by reason of illness or physical disability.
(b) A period of time following the filing of an interlocutory appeal or an appeal from the dismissal of the charge or charging instrument, or that results from a stay issued by an appellate court in a mandamus or habeas proceeding, until the appellate judgment is issued or the stay is lifted by the appellate court.
(c) A period of time between a scheduled court appearance at which the defendant fails to appear and the next scheduled court appearance other than an appearance that occurs for the purpose of addressing a warrant resulting from the defendant’s failure to appear.
(d) A period of time during which the defendant’s location is known but the defendant’s presence for trial cannot be obtained, or during which the defendant is outside this state and resists being returned to this state for trial.
(e) A period of time during which the defendant’s location is unknown and:
(A) The defendant has attempted to avoid apprehension or prosecution; or
(B) The defendant’s location cannot be determined by due diligence.
(f) A period of time while the defendant is on trial or engaged in court proceedings in an unrelated matter, whether in the same court or a different court, and was therefore physically unavailable for trial.
(g) A period of time between a mistrial on the charging instrument and a subsequent trial on the charging instrument, not to exceed three months for each mistrial. The three-month limit may be extended by the court for good cause upon request from either party or upon the court’s own motion.
(h) A period of time between a continuance or a rescheduling of a trial date, granted at the request of, or with the consent of, the defendant or the defendant’s counsel, and the new trial date. A defendant who is proceeding without counsel may not consent to a continuance or a rescheduling unless the court has advised the defendant of the defendant’s right to a speedy trial within the time limit required in ORS 135.746 and the consequences of the defendant’s consent to the continuance or rescheduling.
(2) Any period of time excluded pursuant to subsection (1) of this section from the time limits described in ORS 135.746 that applies to a defendant shall apply to all other defendants charged in the charging instrument. However, if the court finds that it is clearly inappropriate to apply the time exclusion to all of the other defendants, the court may order any relief that justice requires.
ORS 135.752 (Failure to commence trial within applicable time; dismissal) reads as follows:
If a trial is not commenced as required by ORS 135.746, the court shall order the charging instrument to be dismissed without prejudice unless the court finds on the record substantial and compelling reasons to allow the proceeding to continue.
ORS 135.760 (Notice by Inmate Requesting Trial) reads as follows:
(1) Any inmate in the custody of the Department of Corrections or of the supervisory authority of a county pursuant to a commitment under ORS 137.124 (2) against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging the inmate with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring the inmate to trial on the charge forthwith.
(2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint.
ORS 135.763 (Deadline for Trial Commencement; Continuances) reads as follows:
(1) The district attorney, after receiving a notice requesting trial under ORS 135.760, shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.
(2) The court shall grant any reasonable continuance with the consent of the defendant. Notwithstanding the defendant’s lack of consent, the court may grant a continuance on motion of the district attorney or on its own motion, for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.
Right to Speedy Trial under Oregon Constitution
Article I, section 10, of the Oregon Constitution (Open Administration of Justice) reads as follows:
No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.
Right to Speedy Trial under United States Constitution
The 6th and 14th Amendments to the United States Constitution control the Supreme Court of the United States’ analysis of speedy trial rights under the United States Constitution.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court of the United States detailed four factors that must be analysed in determining whether a defendant’s speedy trial rights were violated:
- the length of the delay
- whether defendant asserted his or her right to a speedy trial
- the reasons for the delay, and
- prejudice to the defendant.
Questions to Ask Your Attorney about Your Speed Trial Rights
If you think you might have a speedy trial argument, hire a lawyer. A knowledgeable and experienced attorney can advise you of the law and how it applies to your case. The following are important questions:
- How long of a delay in my case is considered too long?
- What will it cost to file a Motion to Dismiss for Lack of Speedy Trial?
- What will the court do if it decides my right to a speedy trial was denied or violated?
- How has my case been prejudiced or disadvantaged by the delay waiting for trial?